July 2016 feature coal plant L

Bill Would Reduce Opportunities for Texans to Protest Corporate Polluters, Critics Say

The measure takes aim at TCEQ’s permitting process, often the last chance for neighboring communities to oppose polluting plants.


Sen. Craig Estes (R-Wichita Falls)
Senator Craig Estes (R-Wichita Falls)  Patrick Michels

A bill filed by Senator Craig Estes, R-Wichita Falls, could limit Texans’ ability to protest air quality permit applications submitted to the Texas Commission on Environmental Quality (TCEQ), a move critics say would reduce public participation and allow corporate polluters to avoid scrutiny.

Senate Bill 1045, filed last Thursday, would allow the environmental agency to consolidate the two 30-day comment periods currently required by law and could decrease by half the time available to Texans to protest a permit.

“This proposed bill provides another way to avoid or circumvent the second notice period,” said Ilan Levin, an attorney with the nonprofit Environmental Integrity Project. “It cuts out public participation.”

Every year, hundreds of Texas industrial facilities apply for permits to emit pollutants into the air. Depending on the scale of the operation, type and quantity of pollutants and proximity to people, the TCEQ determines whether to provide permits to plants. For Texans living close to a polluting facility, the TCEQ’s permitting process may be the only chance to block a plant from being built or lessen its impact on neighboring communities.

In January, the Observer reported that the TCEQ had consolidated the comment periods for concrete plants applying for permits. That regulatory change was made at the behest of the Texas Aggregates and Concrete Association, a trade group for the concrete industry. Estes’ bill, which bears similarities to the new rule for concrete plants, would expand the changes to all companies applying for air permits.

July 2016 feature coal plant L
Luminant Corp.’s Monticello plant in Titus County. Coal plants are required to apply for TCEQ air quality permits.  Gary Borders

Estes told the Observer in an email that his bill would “actually increases meaningful public participation in the air permitting process, while simultaneously eliminating meaningless red tape for business owners.”

Since 2010, Estes has received at least $8,750 from the concrete association’s PAC. He has also received at least $60,000 from other chemical and industrial groups in the last year, according to a review of his campaign finance reports.

Under current law, Texans have two comment periods that they can use to voice their opinions about an air permit. The first comment period is open soon after a company sends an application to TCEQ. After the agency conducts a technical review, a process that can last a few days to months, it publishes a draft permit and initiates a second comment period.

SB 1045 would allow TCEQ to consolidate the comment periods if it finds that a company’s application is complete and is able to draft a permit within 15 days. It is unclear whether the bill would count a 30-day comment period mandated by the Environmental Protection Agency from the time the application is submitted or after a draft permit is posted. Either way, the bill would reduce the total time available for comments by at least 15 days.

Since the two comment periods currently in place are not consecutive, Levin, the environmental attorney, said the time in between can be crucial in helping residents near industrial facilities organize or gather more information about the permit. In addition, since companies often meet with agency officials to discuss applications before they’re submitted, Levin said a company could work out the details before comments are submitted, further minimizing the time the public has to weigh in.

“It could be easy to avoid any public scrutiny,” Levin said. “They could sit down with the state and hammer out all the details and work things out [beforehand]. That’s normal and encouraged by TCEQ.”

Of the 1,741 permits issued by TCEQ after public notice last year, about a quarter were for large facilities. Andrea Morrow, a spokesperson for TCEQ, said the agency does not comment on pending legislation.

Levin said the bill would apply to facilities of all sizes. Many petrochemical plants are built at existing sites and the new plants are considered minor facilities, which face fewer regulations because of legal loopholes. As a result, Estes’ bill could be used to sidestep public criticism by larger petrochemical plants, he said.

Under current law, Texans who want to challenge a permit are required to submit a request for a contested case hearing, a legal proceeding overseen by the State Office of Administrative Hearings, during the first comment period without having seen a draft of the permit. One argument for consolidating the two comment periods is that it gives the public an opportunity to review the draft permit before requesting a hearing.

Still, the TCEQ currently takes all comments into consideration before issuing a permit, whether they’re submitted during the first or the second comment period. Consolidating the comment period also means TCEQ does not need to post a second notice to alert nearby communities that a facility has applied for a permit.

Levin said that the public comment period is crucial to ensuring Texans have a say about the facilities that are built in their neighborhoods. Other states have local zoning boards to make decisions about where industrial facilities are built, Levin said, but Texas doesn’t.

“This is it,” he said. “It’s the TCEQ permit.”